Blog Stats

Defendants appeal $12.6M verdict, allege juror sent ‘tweets’ during trial that show bias

A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter.com during the trial that show he’s biased against them.

The motion seeking a new trial was filed Thursday on behalf of Russell Wright and his company, Stoam Holdings. It claims juror Johnathan Powell sent eight messages — or “tweets” — to the micro-blogging Web site via his cellular phone. According to the motion, one posting listed the company’s Web address and read in part: “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.” Another described what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” You can view Johnathan’s twiittering at this LINK.

In his motion, filed in Washington County Circuit Court in Fayetteville, lawyer Drew Ledbetter wrote that the messages show Powell “was predisposed toward giving a verdict that would impress his audience.” Powell, of Fayetteville, told The Associated Press on Friday that Wright and his lawyers are “just grasping at straws at this point.”

“I didn’t really do anything wrong, so it’s kind of crazy that they’re trying to use this to get the case thrown out,” Powell said. “I understand where they’re coming from, they lost over $12 million.”

The jury awarded the money Feb. 26 to Mark Deihl and William Nystrom, two northwest Arkansas men who invested in Wright’s company. The company sold a building material called Stoam that it claims combines the insulation qualities of foam with the strength of steel. Deihl’s attorney, Greg Brown, called the venture “nothing more than a Ponzi scheme.”

Brown said he doubts a new trial will be granted. He said Arkansas law requires defendants to prove that outside information entered the jury room and corrupted a verdict — not that information from the jury room made its way out.

Powell, a 29-year-old manager at a Wal-Mart photo lab, said he tried to talk to the judge Friday about what happened, but was turned away. He seemed a little shocked at what kind of power the 140-character messages on Twitter can carry. “I’m kind of surprised so many people have contacted me,” he said.

An Australian lawyer has won the right to serve a default judgment by posting the terms of the judgment on the defendants’ Facebook “Wall”.In a December 2008 ruling that appears to be the first of its kind anywhere in the world, Master Harper of the Supreme Court of the Australian Capital Territory held that the lawyer could use the social networking site to serve court notices.

The court had previously allowed the lawyer to attempt service by email and text messaging the couple’s mobile phones, but these attempts were unsuccessful. The defendants, Carmel Rita Corbo and Gordon Kingsley Maxwell Poyser failed to keep up the repayments on $150,000 they borrowed from MKM in 2007 to refinance the mortgage on their Kambah townhouse The Facebook profiles showed the co-defendants’ dates of birth, email addresses and ‘friend’ lists and declared the co-defendants to be friends of one another. This information was enough to satisfy the Master that Facebook would be effective in bringing knowledge of the legal proceedings to the attention of the defendants. (In fact, it seems that the news of the default judgment got out before the lawyer, Mr. McCormack, had the opportunity to serve the papers. The couple’s Facebook profiles disappeared from the social networking site).

Facebook, for its part, was quite happy with the result, stating: “We’re pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people’s lives.”

Interestingly, in an earlier Australian decision, Citigroup Pty Ltd. v. Weerakoon,reported in April of 2008, the Queensland District Court refused a request to allow substituted service of court documents by email to a defendant’s Facebook page. In so deciding, Judge Ryrie stated: “I am not so satisfied in light of looking at the uncertainty of Facebook pages, the facts that anyone can create an identity that could mimic the person’s identity and indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant.”

A married woman in Nevada sued her employer, claiming that he sent her inappropriate emails and gave her unwanted sexual attention. During the lawsuit, the employer’s lawyer discovered that the woman had set up a MySpace account where she pretended to be single. The employer’s lawyer wanted to see her Myspace emails; if this woman was looking for extra-marital affairs on Myspace, this might speak to her credibility. The judge refused.

In a decision of the Nevada District Court, Mackelprang v. Fidelity National Title Agency of Nevada Inc, a married plaintiff alleged that she was sexually harassed by senior members of her company, and that this led to her constructive dismissal. She alleged, among other things, that a vice president of her company sent sexually explicit emails to her office computer a weekly basis. During the course of litigation, the defendant’s lawyer discovered that, a few months after leaving the defendant’s employ, the plaintiff had opened two Myspace accounts; in one of the accounts, the plaintiff identified herself as a single 39 year old female who did not want children, and in another account, she identified herself as a married woman with six children whom she loved.

The defendant’s lawyer obtained a subpoena directing Myspace to produce all records for those accounts, including private email exchanges between the plaintiff and others. In response to the subpoena, Myspace produced the “public” information regarding the accounts, but refused to produce private email messages in the absence of a search warrant or a letter of consent to production by the owner of the account. The plaintiff refused to consent to the obtaining of the release of the private messages on the grounds that the information sought by the defendants were irrelevant to the lawsuit and improperly invaded her privacy. She contended that the defendants were on a “fishing expedition” and that they had no relevant basis for discovering the private email messages on either account.

The defendant’s lawyer brought a motion seeking to compel the plaintiff to consent to production of the emails. The defendant’s pointed to the usual circumstances of the plaintiff’s two Myspace accounts as creating an inference that the plaintiff was using Myspace email to facilitate the same types of electronic and physical relationships that she had characterized as sexual harassment in her lawsuit. If the plaintiff had, in fact, been voluntarily pursuing extra-marital relationships through Myspace, then this information could be used to impeach her credibility and rebut her sexual harassment claims. The emails could telling as to whether the plaintiff had actually suffered emotional distress as a result of the harassment, and might contain admissions relevant to the case.

The Court disagreed with the defendant and refused to order production of the emails. The defendant had nothing more than a suspicion and speculation that the plaintiff may have engaged in sexually related email communications on Myspace. There was an insufficient connection between the accounts and the workplace to make her private emails relevant. The Court noted:

Ordering plaintiff to execute the consent and authorization form for release of all of the private email on Plaintiff’s Myspace.com internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.

The Nevada District Court opined that, although it was theoretically possible that emails on the Myspace account might contain relevant information, the defendant should have limited the request to the production of relevant email communications. The determination of whether certain email communications were relevant could be properly ascertained through the discovery process.

No Canadian case to date has considered a request for the production of Myspace or Facebook emails. It seems likely that Courts will treat these emails differently than the other information on a social network profile; even a “private” Myspace profile is viewable by all a user’s “friends” whereas email is not; consequently, a Court may not be able to infer from the nature of the social network service either the intent to make public, or the likely existence of, relevant email communication. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Myspace or Facebook email communications. It also remains to been seen whether evidence contained in a profile itself could give rise to a sufficiently reasonable inference that that email communications are relevant. For example, if relevant postings on a Facebook wall made express reference to email communications, this might be sufficient to convince a Canadian court to order disclosure, notwithstanding the expectation of privacy surrounding such communications.

Following a recent decision of the Ontario Court of Appeal, government institutions now have to go the extra mile to comply with their MFIPPA obligation to provide access to information stored in their electronic databases – even if they have to design special software, from scratch, to get at the information.

James Rankin, a journalist with the Toronto Star, wanted to test the claim of the Toronto Police Services that their policemen do not engage in racial profiling. He wanted information from Police about whether certain people had been arrested only once, or more than once, so he submitted a requested under Ontario’s “access to information” laws. Mr. Rankin did not need to know the names of these people who had been arrested – that information is protected by our privacy laws – he just wanted to know the number of arrests. The difficulty was that the electronic databases couldn’t give just the “numbers’ – it contained the personal information as well. The Police complained that in order to comply with Mr. Jenkin’s request, they would have to design special software to get the numbers from the computer system (which would take them about two weeks). Further, this information would be only 65-70 % accurate.

The matter made its way to the Court of Appeal, in Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner . The police argued that, since the information did not exist in the form that Mr. Jenkins wanted, it wasn’t a “record.” They argued that, although they might be required to produce records already in their database, they weren’t obliged to create new records. Further, the process of having to create new software to get this information would be too onerous.

any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes…any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution; (“document”).

In a lovely game of semantics, the Court decided to construe the word “record” broadly. It wasn’t necessary that the police “normally use” the software needed to get Mr. Jenkins the information – it was only necessary that the Police normally use the technical expertise (and computer programs/software etc.) used to create the software needed by Mr. Jenkins.

Since municipal institutions such as the Toronto Police serve the public, they ought to be open to public scrutiny. The overarching purpose of “access to information” legislation is to facilitate democracy. It is fundamental to a healthy democracy that government processes be easily scrutinized.

In a recent decision of the Ontario Superior Court of Justice issued on February 20, 2009, Justice Brown ordered the production of a plaintiff’s private Facebook profile. This is the second Canadian decision to order production of private Facebook pages for use in personal injury insurance litigation. The full text of Justice Brown’s decision, Leduc v. Roman, is available through the Canadian Legal Information Institute (CanLII) website.

Pamela Pengelley

Pamela Pengelley is a lawyer with Cozen O'Connor. She focuses her practice on subrogation, insurance and commercial litigation.
Please note that the views expressed in this blog are the author's own and are not affiliated with Cozen O'Connor.